Most clients come in to see me without a true understanding about how car accident lawsuits proceed or the time-frames involved. I am going to do my best to discuss the basic steps in this article.
There are, generally, two parts to a car accident lawsuit: (1)Accident Benefits Claim; and (2)Lawsuit.
(1) Accident Benefits Claim
The Accident Benefits, or “No-Fault Benefits” claim, is made through your own insurance company if you have one. If you do not, then you are still entitled to claim, and there is a “priority” list that has to be consulted to determine which insurer should be paying you those benefits. Even if you were hit by an unidentified car, you were a passenger, bicyclist or pedestrian without car insurance, you should still qualify for benefits. Even if you were in violation of some rules, you may qualify for all or some of the benefits. It is important that you apply for accident benefits if you plan to start a lawsuit, since it is a requirement.
You can claim benefits by completing an application for accident benefits and submitting it to the insurance company. You do not need to wait for the insurer to send you the forms. My law firm typically assists clients in completing the application, but if you wish to obtain the form yourself you can find it here – http://www.fsco.gov.on.ca/en/auto/forms/Documents/SABS-Claims-Forms/1224E.1.pdf If you are claiming for income replacement benefits, you also need to submit a confirmation from your employer about your earnings – that form can be found here – http://www.fsco.gov.on.ca/en/auto/forms/Documents/SABS-Claims-Forms/1003E.pdf The last main form that most people need is the disability certificate that has to be completed by your treatment provider/practitioner – that form is usually available at the practitioner’s office, but it can be found here – http://www.fsco.gov.on.ca/en/auto/forms/Documents/SABS-Claims-Forms/1226E.pdf
The forms are provided by the Financial Services Commission – http://www.fsco.gov.on.ca/en/Pages/default.aspx . The Financial Services Commission (FSCO) is a body that oversees insurance companies and regulates the industry. They assist in trying to resolve disputes between insurers and insured injury victims through “mediation” (where a FSCO mediator tries to help both sides settle their disputes), and they also conduct arbitrations (arguments) where both sides make arguments and FSCO’s arbitrators decide the case. If you have a dispute, you would file for mediation and must do so within the time-limits or you face the argument that you are out of time to dispute it. It is mandatory to mediate a dispute before you proceed to arbitration. If a mediation fails, you often have the option to start a lawsuit instead of arbitrating if you wish. A lawyer can help with arbitration or a lawsuit.
In York Region (ie: Richmond Hill, Vaughan, Newmarket), lawsuits are typically dealt with through the Newmarket Courthouse (http://www.ylm.ca/ylm/ylm_comp_detail.aspx?comp_id=64002). In Durham, they are dealt with through the Oshawa courthouse (since the Whitby courthouse closed down). Many centres have a courthouse for their area. There can be strategic advantages to filing a claim in one jurisdiction instead of another, but it is not entirely your choice – the Courtroom Rules set out a list of factors to consider when determining where a case should be heard. A practice had developed that lawyers were simply filing wherever they chose (ie: where it was close to them) – but this has since started to fall away. Many Judges are now transferring cases out when they have been started in the wrong jurisdiction.
Before a lawsuit is commenced in a car accident injury claim, a notice of action should be sent to the proposed defendant driver and owner, as well as their insurance company. This information is not always immediately available, but the notices should go out as soon as they are available. One of the reasons is because sending out that notice can affect your ability to claim for interest on the damages that you are owed. Also, it starts the case moving and allows the insurance company to do their due diligence and assess the claim. Technically, there is a 120 day time-period to send out the notice after the accident, but that is not a bar to your action typically.
Once the notice of action has been sent, the insurer should write back confirming whether there is coverage, the limits of coverage and they should request the documents that they need to assess the claim.
If the matter cannot be resolved then a lawsuit (also called a statement of claim) must be filed for your injury compensation and damages. This is typically drafted by your lawyer, if you have one, although a person is entitled to draft their own. The typical limitation period to file your statement of claim with the courts is two years from the date of the accident (for garden variety typical claims – but you should consult a lawyer immediately in your specific case). The limitation period can be extended, but you should not rely on that. Your lawyer could provide you with more information about that.
Once a lawsuit has been filed, the insurance company must appoint a lawyer to represent their insured driver/owner against your claim. They will enter a statement of defence, which will typically deny your claim and make allegations against you.
Documentation will then be exchanged and you will proceed to examinations for discovery. Examinations for discovery is the step when each side questions the other side about the accident, injuries, claims, etc.
There is then usually (but not always) a mediation where settlement is considered.
If the matter cannot be settled, then it proceeds to a pre-trial where an independent Judge provides his or her opinion about the case. If that does not settle the case, then the lawsuit can proceed to trial, although settlement is still possible in advance of trial.